Dupre v. Consolidated Underwriters

• Decision Date: 23 December 1957
• Docket Number: No. 4517,4517
• Citation: 99 So.2d 522
• Parties: Dr. Robert E. DUPRE, Plaintiff-Appellant, v. CONSOLIDATED UNDERWRITERS, Defendant-Appellee, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 522

99 So.2d 522

Dr. Robert E. DUPRE, Plaintiff-Appellant, v. CONSOLIDATED UNDERWRITERS, Defendant-Appellee, et al.

No. 4517.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 1957.

Jack C. Fruge, Ville Platte, for appellant.

Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellee.

TATE, Judge.

This suit is by a physician to recover for medical services and hospitalization in the total amount of one thousand dollars afforded an employee injured in the course of his industrial employment. Made co-defendants were the employee and the compensation insurer of his employer.

The present appeal concerns only a judgment sustaining an exception of no cause of action filed on behalf of the latter defendant, Consolidated Underwriters. The plaintiff-appellant has filed in this court a motion to remand these proceedings to permit him to amend his petition to supply allegations needed to state other bases of his claim against the defendant insurer arising from certain information coming to his attention in the trial, on the merits, subsequent to the judgment appealed from, against the other codefendant, the injured employee himself (who is not a party to this appeal).

To this motion to remand was attached a certified copy of preliminary reasons for judgment rendered by the District Court on August 6, 1957, following the trial of the plaintiff's suit against the injured employee himself:

'Dr. Dupre testified that while the defendant was in the plaintiff's hospital an adjuster for Consolidated Underwriters called on the Doctor to tell him that they would take care of the medical expenses up to the limits of $1,000.00.

'In 1953, Marius Dupre (the injured employee) filed a suit against the third party who caused the motor vehicle accident which injured him. Consolidated Underwriters intervened alleging that they had paid $1,000.00 medical expenses incurred by Marius Dupre. The suit against the third party was compromised as was the workmen's compensation case between Marius Dupre and Consolidated Underwriters. In that compensation settlement, there was an allegation on the part of Consolidated Underwriters to the effect that they had paid $1,000.00 in medical expenses on behalf of Marius Dupre. On the basis of these allegations Marius Dupre's attorney and the defendant (employee) himself thought that Dr. Dupre's bill had been paid. The fact is that Consolidated Underwriters made a false or erroneous allegation and the settlement went through as a result of this error.

'The exception of no cause of action filed by Consolidated Underwriters (sometimes hereinafter referred to as 'C.U.') was sustained because (LSA-R.S.)--23:1205 expressly prohibits an assignment of any claim under the workmen's compensation statute. This exception was orally argued prior to the trial and without the benefit of the information that Consolidated Underwriters had expressly stated in other pleadings that they had paid $1,000.00 in medical expenses. In fact the only matter presented to this court in connection with Consolidated Underwriters exception was whether or not the May 5th, 1954 assignment was valid. It now appears clear that this is not the only basis of a claim against C.U. in the petition filed by plaintiff and that this court was in error when it sustained C.U.'s exception.

'The only way to correct this error is to set aside the judgment of this court dated January 3, 1957 in which C.U. was dismissed from the cause of action and order the case reset for trial. Neither of the attorneys (i.e., for the plaintiff and for the defendant empoyee) have expressly requested this relief, each stating that it was the duty of the other to see to it that C.U. was kept in the case as a party defendant. Since this relief was not sought, neither attorney submitted authority for this action. It may be that since the judgment dismissing C.U. was signed January 3, 1957, it is beyond this court's authority to now reopen the case as against C.U. If this be true then that judgment can be appealed and this Court is confident that the Court of Appeal will correct this Court's error in sustaining the exception filed by C.U.'

We should say at this point that we think the District Court correctly dismissed plaintiff's suit against Consolidated insofar as it is alleged to have arisen through a purported assignment by the injured employee of his own claim against the defendant insurer for medical expenses incurred by reason of the industrial accident, in view of the express prohibition of LSA-R.S. 23:1205, which provides that all claims arising under the compensation act 'shall not be assignable.' Although in this instance, as argued, the assignment was evidently intended to be beneficial to this particular employee, we are compelled to respect this strict legislative prohibition, for reasons of public policy, of all such assignment, cf. Larson, Workmen's Compensation Sections 2.60, 58.40.

But in addition to any alleged right to collect the medical expenses arising from the attempted assignment, plaintiff alleged in its original petition, Article 9:

'Your petitioner further alleges on information and belief that a settlement was made between Marius Dupre and Consolidated Underwriters compromising the claim of Marius Dupre, against Consolidated Underwriters and in said settlement the matter of medical expenses, hospitalization and medicants were included therein and therefore both Marius Dupre, and Consolidated Underwriters are solido justly and truly indebted unto your petitioner in the full sum of One Thousand and No/100 ($1,000.00) Dollars.'

As can be seen from the facts set forth in the second paragraph of the trial court's reasons for judgment quoted at length above, from the circumstances of the execution of the compromise between the employee and the defendant insurer could arise a direct obligation of the defendant-appellee to plaintiff as a third-party beneficiary of a stipulation for his benefit, Article 1890, LSA-C.C.; Cummings v. Albert, La.App. 1 Cir., 86 So.2d 727; or possibly of a cause of action founded upon a judicial confession of such liability, Article 2291, LSA-C.C., or detrimental reliance thereupon.

These causes of action are comprehended within the vague allegations of Article 9 of plaintiff's petition above-quoted--although the allegation itself is so vague as to constitute a mere conclusion of the pleader which need not have been accepted as correct for purposes of passing upon the exception, Le Blanc v. Danciger Oil & Refining Co., 218 La. 463, 464, 49 So.2d 855. We think, however, the recent jurisprudence clearly calls for our remanding the suit to permit plaintiff to amend his petition to state these causes of actions insufficiently alleged, although indicated, by the original petition.

As the Supreme Court stated, 'The modern trend of liberality in upholding substantive rights instead of subtle technicalities is to allow amendments to petitions that fail to state a cause of action due to insufficient allegations,' Douglas v. Haro, 214 La. 1099, 39 So.2d 744, 745. In the Douglas case, the Supreme Court, upon its own initiative and in the interests of justice, remanded the case in order that the plaintiff might implead a party necessary to the case 'in order to render substantive justice and to avoid a multiplicity of suits,' 39 So.2d 745.

Likewise, in Doyle v. Thompson, La.App. 1 Cir., 50 So.2d 505, with our distinguished predecessor Judge Dore as its organ, this Court reversed a judgment sustaining an exception of no cause of action in order to permit the plaintiff to amend its petition, even without a formal motion by pliantiff (as here) for permission to do so, when it appeared from plaintiff's brief that additional facts could be alleged to supply the cause of action. See Bourgeois v. Le Blanc, La.App. Orleans, 72 So.2d 777, for a similar ruling.

A more troublesome question is presented as to whether plaintiff, on the remand, should be permitted to amend his petition to state--as well as the third-party beneficiary causes of action which amount to amplification of the allegations of the quoted paragraph 9 of his petition--the cause of action indicated by the first paragraph of the trial court's reasons for judgment above set forth: the direct obligation of defendant insurer for these medical expenses arising from the alleged authorization by its agent to the plaintiff physician to furnish them to the injured employee. See O'Ferrall v. Nashville Bridge Co., 165 La. 963, 116 So. 399; Gardiner v. Cleveland Motors, La.App. 1 Cir., 16 So.2d 544; Webb v. Shreveport Packing Co., La.App. 2 Cir., 180 So. 843.

Article 419, Code of Practice, permits amendment by leave of court only when 'the amendment does not alter the Substance of his demand by making it different from the one originally brought.' (Italics ours.)

It should be noted, first, that the 'demand' of the suit is not synonymous with the 'cause of action(s)' therein, cf., Quarles v. Lewis, 226 La. 76, 75 So.2d 14. The demand is the object of the suit, see Article 137, C.P.; De Lee v. Price, La.App. 1 Cir., 94 So.2d 79,--in this case the demand for a monied judgment of one thousand dollars. A cause of action is 'the situation or state of facts which entitles a party to sustain an action', i.e., which gives him 'a right to judicial interference in his behalf,' Hope v. Madison, 192 La. 593, 188 So. 711, 715--in this case, the facts of the compromise settlement from which might arise the third-party beneficiary actions in plaintiff's favor, and/or the fact of the alleged authorization by defendant-appellee's agent to plaintiff to treat the injured employee entitling plaintiff to recover for medical services afforded per such authorization.

Having noted this distinction, it must nevertheless be frankly admitted that the jurisprudence reflects considerable confusion as to what may alter the substance of the demand and that many of the cases cannot be...